Monthly Archives: September 2013

The trial of former Liberian President Charles Taylor moved the Special Court for Sierra Leone (SCSL) into the limelight of international criminal justice for the last half decade. Without any doubt, the presence of a former Head of State in the dock drew international attention to the smallest of the ad hoc international criminal courts. The Appeals Chamber of the Special Court for Sierra Leone (SCSL) has now announced that it will render the appeal judgment in the case of Charles Taylor on 26 September 2013 at 11.00 a.m. CET. Taylor, who is in his sixties, was found guilty by the trial panel and sentenced to 50 years of imprisonment. Given the importance of the Taylor case, the forthcoming issue of the Journal of International Criminal Justice contains a special symposium on the Taylor Trial Judgment and the future of the Residual Special Court. The symposium, edited by Laurel Baig and myself, features articles by Kai Ambos and Ousman Njikam on “Charles Taylor’s Criminal Responsibility,” Kevin Jon Heller on “The Taylor Sentencing Judgment,” Fidelma Donlon on the “Transition of Responsibilities from the Special Court to the Residual Special Court for Sierra Leone,” and Kirsten Keith on “Deconstructing Terrorism as a War Crime.”The Taylor trial is the first completed criminal appeals process judging a former Head of State in modern international criminal law. There has been much debate about whether the SCSL was truly the first international criminal tribunal to have tried a head of state, pointing to the conviction of Karl Dönitz at the International Military Tribunal in Nuremberg, who was the Head of State of the Nazi German Reich for about 20 days before Germany’s capitulation. But as the IMT did not have any appeal process, let’s simply give the credit to the SCSL of being the first ever to have accomplished such an historical task. The magnitude of this accomplishment is illustrated both by how long it has taken for the international community to fully try a former head of state and the practical challenges encountered by other courts, such as the incomplete Milosevic trial before the ICTY or the failure to arrest of Bashir for trial at the ICC. From a legal perspective, however, the SCSL should not be judged simply by such an historic achievement, but rather by the soundness of its legal and factual findings. A daily news chalk board in Monrovia, Liberia. Photo by Lieutenant Colonel Terry VandenDolder, U.S. Africa Command. Public domain via Wikimedia Commons. The Achievements of the SCSL Looking back at the SCSL’s activities since mid-2002, when the first investigations started, it is obvious that bringing Charles Taylor to trial was not an easy task. The Court was plagued with challenges: financial constraints, challenging legal questions, the staggeringly slow pace of proceedings, lacking interest from the Sierra Leone population towards the end of the mandate, the precarious security situation in the first years of operations, the difficult relationship with the Truth and Reconciliation Commission. Then add further challenges unique to the Taylor proceedings such as the need to operate in three different countries and two different continents. These are only a few challenges amongst many more that endangered the success of this shoestring court. At the end of the day, SCSL has overcome these challenges to complete its mandate and contributed to Sierra Leone’s transition to peace and democracy. In retrospect, many of the problems encountered by the court now appear to be less acute in comparison to the other hybrid experiences in international criminal law. Initially the sponsors of the court wished the court to deliver justice within three years. In the end it took more than a decade to accomplish the mandate. The Taylor trial alone lasted over six years. In its eleven years of existence, the SCSL issued 13 indictments against members of all warring factions resulting in eight convictions (not counting the Taylor conviction at the trial level, which if upheld would be the ninth). Only one accused, Johnny Paul Koroma, was never arrested and is believed to be deceased. Two accused (Foday Sankoh and Sam Bockarie) died shortly after charges were laid against them. Sam Hinga Norman died shortly before his judgment day in the Civil Defence Forces trial. Apart from those main “atrocity” trials, twelve contempt proceedings were initiated by the Prosecution resulting in ten convictions (one contempt case is still pending on appeal; one resulted in an acquittal, which so far is the one and only acquittal issued by the SCSL). Following the Taylor Appeal Judgment, the SCSL will “transform” into the Residual Special Court for Sierra Leone (RSCSL) shortly after the completion of its mandate. According to the RSCSL statute this residual court will “continue the jurisdiction, functions, rights and obligations” of the SCSL. The developments leading to and the structure and work of this future organisation are explained in detail by Fidelma Donlon in the JICJ Symposium. The Taylor Case and the Appeals Judgment Taylor is accused of four charges of crimes against humanity (murder, rape, sexual slavery, other inhumane acts (i.e. mutilations), and enslavement), four charges of violations or Article 3 Common to the Geneva Conventions and of Additional Protocol II (acts of terrorism, murder, outrages upon personal dignity, cruel treatment, pillage) and for the conscription, enlistment or use of child soldiers. It is alleged that he committed those crimes on Sierra Leone soil from 30 November 1996 to 18 January 2002 remotely from Liberia. Taylor was found guilty on all 11 counts by the trial judges on 26 April 2012. Even though Taylor’s conviction at trial may not have surprised the casual observer, he was actually convicted for far less than was initially charged by the prosecution. The prosecution was of the view that Taylor acted in concert with the leaders of the rebel movements in Sierra Leone (i.e. the RUF and AFRC) and that he and his co-conspirators shared the intend to commit all the crimes perpetrated in the Sierra Leone civil war. The judges rejected this claim, finding that the prosecution failed to proof the allegation that Taylor forged an agreement with the Sierra Leone rebels to commit crimes against the Sierra Leone population. The Trial Chamber instead considered Taylor as an accessory and convicted him for aiding and abetting and planning crimes in a narrower time frame, i.e. from August 1997 to 18 January 2002. It found that Taylor aided and abetted by providing practical assistance, encouragement or moral support to the RUF in the commission of crimes during the course of their military operations in Sierra Leone. In that respect the Trial Chamber noted that “a common feature of all of the aforementioned forms of assistance is that they supported, sustained and enhanced the functioning of the RUF and its capacity to undertake military operations in the course of which crimes were committed” (Taylor Trial Judgment, para. 6936). It importantly and rather controversially held that the military operations of the RUF and RUF/AFRC were “inextricably linked to the commission of the crimes charged in the Indictment” (Taylor Trial Judgment, para. 6936). An individualized assessment of Taylor’s contribution to the specific crimes committed on Sierra Leone territory was therefore unnecessary. It was sufficient to simply proof that Taylor sustained the military operations of the rebels. As such military operations were, according to the Trial Chamber, “inextricably linked to the commission of the crimes” no proof to the substantial contribution to the individual crimes was any longer necessary. The Trial Chamber additionally found that Taylor devised a plan to attack major towns and the capital Freetown in late 1998 and early 1999 during which crimes were committed. Regarding his knowledge, the Trial Chamber found that Taylor was aware of the atrocities from at least the time when he assumed the presidency in Liberia in August 1997. Many of the defence challenges on appeal questioned the evaluation of evidence by the trial judges. The facts of the case, and of the civil war more generally, were unsurprisingly complex. The trial judgment had to rely extensively on hearsay and circumstantial evidence. Some of the more troubling approaches to fact finding by the SCSL Chambers have been highlighted by Nancy Combs in her seminal book on “Fact Finding without Facts” and much of the same judicial attitudes towards inconsistencies and contradictions can be found in the Taylor Trial Judgment. It will be interesting to see how the Appeals Chamber addresses such challenges or whether it will simply rely on the principle that a “margin of deference” will be given to the fact finding of the Trial Chamber. Apart from evidentiary questions one of the most controversial points on appeal will be the definition of aiding and abetting and whether this mode of attribution requires that the accused contributed with “specific direction” towards a crime. The Trial Chamber was of the opinion that the actus reus of aiding and abetting did not require such “specific direction”, relying on ICTY precedents in the Perišić Trial Judgment and Mrkšić Appeal Judgment. As other SCSL cases did in fact require such an element the rejection in the Taylor case is notable (RUF Trial Judgment, para. 277; CDF Trial Judgment, para. 229). In the Perišić Appeals Judgment, however, the ICTY Appeals Chamber controversially held that “specific direction” is a necessary element of aiding and abetting holding that:“[I]n most cases, the provision of general assistance which could be used for both lawful and unlawful activities will not be sufficient, alone, to prove that this aid was specifically directed to crimes of principal perpetrators. In such circumstances, in order to enter a conviction for aiding and abetting, evidence establishing a direct link between the aid provided by an accused individual and the relevant crimes committed by principal perpetrators is necessary.”More importantly, the SCSL Appeals Chamber’s own jurisprudence on this point is remarkable. In the CDF case it relieved an accused from criminal responsibility for aiding and abetting for providing military equipment, which was later used in the commission of crimes. At the time of his contribution CDF fighters were notorious for committing crimes against civilians. The Appeals Chamber stated that “the provision of logistics is not sufficient to establish beyond reasonable doubt that [the accused Fofana] contributed as an aider and abetter to the commission of specific criminal acts in Bo District” (see CDF Appeals Judgment, para. 102). The similarities with the Taylor case are striking and it will be interesting to see whether the Appeals Chamber will apply the same standards to Taylor. In a critical analysis of the Trial Chamber’s legal findings, Kai Ambos and Ousman Njikam highlight some considerable deficiencies in the Taylor Trial Judgment, placing the judgment’s assessment within the broader international criminal law jurisprudence on individual criminal responsibility by addressing the effect of the recent Perišić Appeal Judgment. As mentioned above, the significance of the Taylor case is usually attributed to the fact that Taylor was indicted as the sitting Liberian head of state. The Appeals Chamber dismissed the legal questions surrounding any claims of immunity in 2004, before Taylor’s arrest and initial appearance in spring 2006 (when Taylor had already stepped down from his presidency). Any questions of immunity will therefore not feature in the forthcoming Appeal Judgment. His “special status” as a Head of State at a time when he allegedly contributed to the crimes in Sierra Leone was however considered as an aggravating circumstance in the sentencing judgment of the Trial Chamber. This “special status” and the extraterritoriality of Taylor’s acts trumped all mitigating circumstances. A detailed critique of the Sentencing Judgment by Kevin Jon Heller in the JICJ symposium points to some of the possible flaws of the 50 year sentence, in particular addressing the fact that Taylor was convicted as an accomplice and not as a principal. Comparing the sentence received by Taylor with other SCSL convicts, Heller concludes that the 50 years sentence may be disproportionate. The fact that the extraterritoriality of Taylor’s acts was considered as an aggravating circumstance is striking. Here the Chamber’s silence on the nature of the conflict in its verdict is notable. Other SCSL judgments found that despite the alleged assistance from Liberia, the nature was non-international in character. If this holding is correct, crimes committed in international armed conflicts would routinely deserve a higher penalty. The historical pronouncement of the Appeals Chamber Judgment will be accessible over live stream. Simon Meisenberg is a Legal Advisor, Extraordinary Chambers in the Courts of Cambodia (since 2011); former Senior Legal Officer (2009-2011) and Legal Officer (2005-2009) in the Special Court for Sierra Leone. Laurel Baig is the editor of the forthcoming symposium from Journal of International Criminal Justice entitled, Symposium: Last Judgment – The Taylor Trial Judgment and the Residual Future of the Special Court for Sierra Leone. This issue will be published online imminently, and all articles mentioned in the text of this blog post will be freely accessible for a limited time. The views expressed here are those of the author alone, and do not necessarily reflect the views of the Extraordinary Chambers in the Courts of Cambodia, or the United Nations in general. The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions. Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw. – See more at: http://blog.oup.com/2013/09/charles-taylor-trial-judgement-special-court-sierra-leone-pil/#sthash.IxqeupA3.dpuf

On October 4th, the CCJHR will co-host a conference on Racism and Hate Crime in Ireland. An excellent line up of speakers will present at the event, addressing topics such as incitement to hatred, hate crimes, the role of the criminal law, Council of Europe human rights standards and institutionalised racism.

Racism and Hate Crimes in Ireland: Is the Legislative and Policy Framework Adequate?

On the 30th of August the United Nations observes the International Day of the Victims of Enforced Disappearances. Emmanuel Decaux (President of the UN Committee on Enforced Disappearances) and Olivier de Frouville (Chair and Rapporteur of the Working Group on Enforced or Involuntary Disappearances (WGEID)) have taken the time to consider a few questions with us in recognition of this important observance day, which was established by the UNGA (resolution 65/209, para. 4).

Installation on the Disappeared on the day of the celebration of the 8th anniversary of the Peruvian Truth and Reconciliation Commission, Plaza San Martin, August 26th, 2011. Photo by Catherine Binet. Creative Commons License via The Advocacy Project Flickr.

How can a human being ‘disappear’? What does this term represent?

Emmanuel Decaux: There is a big difference between a “missing person” and an enforced disappearance, with a secret detention of a person and a denial of his whereabouts. The legal definition of enforced disappearance implies an imputability to the State, which can act directly by its agents (such as the police or armed forces), but also indirectly, by giving its authorization, support, or acquiescence to non-State actors (such as paramilitary groups or clandestine forces). When private actors are responsible and the State is not involved, neither directly nor indirectly, its duty is to find the disappeared person and to prosecute the perpetrators. However, in this case we are referring to a crime of “droit commun” (common law) and not a crime of the State. The Convention of 2006 takes a step further in calling on States to investigate acts committed by persons or groups of persons acting without its authorization, support, or acquiescence and to bring those responsible to justice. But the main responsibility is the responsibility of States, by action or by omission.

Olivier de Frouville: Enforced disappearance is a technique of terror. Victims of disappearances do not disappear willingly or by accident. They are the victims of a crime, consisting in the deprivation of their liberty, and the subsequent denial of that deprivation of liberty or the refusal to provide any information about the fate or the whereabouts of the disappeared person, thus placing this person outside the protection of the law. Enforced disappearances are part of counter-subversive strategies used by some intelligence services and security personnel, together with torture and summary executions. Typically, a number of persons are arrested, in an effort to obtain information and dismantle illegal groups or simply to terrorize the civilian population and obtain obedience.

Many people associate the term ‘disappeared’ (Desaparecidos) with the crimes carried out by Pinochet’s regime. Is this the origin of the term?

Emmanuel Decaux: The phenomenon was not new but its systematic use was a characteristic of military regimes in Latin America. They established between them a secret transborder cooperation with the Condor plan. It explains the concern of Latin American countries, with both a regional instrument and also a leading role in the UN system. But we have to say that every country ought to be concerned by enforced disappearance, not only due to military dictatorships or civil wars, but also in democracies, as we’ve seen in the reports of the APCE on the network of secret detentions of the CIA and the case law of the European Court on Human Rights. The legal nature of the Convention could be a motivation for all States to take preventive measures, looking to the future rather than only at the past, and to fully cooperate with others States in an international framework.

Olivier de Frouville: If you read the Nacht und Nebel Decree signed by Keitel in 1941, you will find an exact description of what enforced disappearances are. This is a codification of the practice, condemned as a crime against humanity and a crime of war by the International Military Tribunal in Nuremberg:

“The territories occupied by Germany were administered in violation of the laws of war. The evidence is quite overwhelming of a systematic rule of violence, brutality and terror. On 7 December 1941 Hitler issued the directive since known as the ‘Nacht und Nebel Erlass’ (Night and Fog Decree), under which persons who committed offenses against the Reich or the German forces in occupied territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to the SIPO and SD for trial or punishment in Germany. This decree was signed by the Defendant Keitel. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases where they died awaiting trial, the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.”

Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal. The aim is achieved when the criminal is transferred to Germany.” (Nuremberg Judgement, IMT Serie, vol. I, 232-233)

Other interesting analysis of the NN Decree is included in the Justice Case (4 December 1947, TWC, vol. III, 1057-1058). The practice seems to have been revived during the colonial wars in an effort to find new techniques to dismantle illegal armed groups and their cells. It was then exported to Latin America, and then used extensively in the context of the Condor plan. Afterwards, it spread all over the world.

How can international law make a difference?

Emmanuel Decaux: The elements of the crime of enforced disappearance are already violations of international human rights law, as a breach of such basic rights as to the right to life, the prohibition of torture, the “right to recognition everywhere as a person before the law,” the due process of justice, etc. There is a strong case law of the Human Rights Committee and of regional Courts, such as the European Court of Human Rights or the Inter-American Court of Human Rights, in this field. But the “complex phenomenon” of enforced disappearance was not dealt as such in its systematic nature.

The new trend of international law is to stick to the core element and to create a new human right, the right to not being subjected to enforced disappearance and to organise the international cooperation in matters of prevention, protection, prosecution, and reparation. The first step was the creation of the WGEID in 1980 and the adoption of the Declaration on the protection of all persons from enforced disappearance by the GA in 1992. Another important step was the qualification of enforced disappearance as a crime against humanity by the Rome Statute. The latest development was the adoption in 2006 of a new treaty, the Convention on the protection of all persons from enforced disappearance, which entered into effect on 23 December 2010, after the twentieth ratification. As of today, there are 40 State Parties and the Committee on enforced disappearances (members were elected in May 2011) is fully functioning with 10 independent experts from all regions of the world.

The Convention is at the crossroads of international human rights law and of criminal law. As other treaty-bodies, its main functions are to examine the reports submitted by States parties on the implementation of the Convention and to consider individual communications. But it can also receive and consider urgent actions, undertake country visits, and bring reports of widespread or systematic practise of enforced disappearance to the attention of the UN General Assembly. The Convention qualifies enforced disappearance as a crime and requires States parties to adapt their domestic legislation in order to incriminate enforced disappearance as such, as an autonomous crime. Furthermore it underlines that the widespread or systematic practice of enforced disappearance qualifies as a “crime against humanity” according to the rules of international law. The Convention is also very important to prevent enforced disappearance, with legislative and administrative measures strengthening the rule of law, in order to forbid secret detention and to create accountability. Its last field is the rights of victims, taking into account vulnerable groups, such as children. All these legal obligations taken together constitute a strong framework to fight against impunity and to promote justice.

The Convention created an important momentum and the first goal is to trigger universal ratification and effective implementation. The Committee is the watchdog of the Convention but its broad mandate is to cooperate with other international bodies, such as the Human Rights Committee or the WGEID, and with the International Red Cross Committee (IRCC) and NGOs. The Committee has close links with the WGEID and the International Day is a special occasion for us to pay tribute to the victims and to the struggle of civil society across the world.

Olivier de Frouville: At the time when the Mothers of the Plaza de Mayo in Argentina were challenging the military dictatorship and calling the international community to help them in their quest for truth and justice, enforced disappearances were not well identified as such. Identifying the phenomenon and giving it a legal definition, as well as defining the legal obligations of States, was really the first essential and necessary step towards an effective action against this scourge. The WGEID played a major role to this regard, as it analysed the phenomenon on the basis of the communications and cases it received, and tried both to come up with a legal definition and with a satisfactory legal regime, dealing with all aspects of the problem.

Enforced disappearance is a complex crime and almost all fields of law are affected. It is important to create an autonomous crime of enforced disappearance in the penal code, to submit this crime to universal jurisdiction, but also to provide for integral reparation to the victims, as well as with a strong national mechanism aiming at clarifying the fate or the whereabouts of the victims. Civil status issues are also at stake, as the disappearance of persons leaves pending a whole range of matters, like marriage, inheritance, or guardianship. The disappearance and appropriation of children also create difficult problems. Identification of stolen children can lead to the restitution of their true identity, sometimes against their own will. In many cases, international cooperation is needed, due to the transnational nature of the practice. For instance, in the framework of Condor, citizens from Uruguay or Chile were abducted in Argentina through joint operations undertaken by the intelligence services of both countries, and then taken to Montevideo to be tortured and executed. Unfortunately, this pattern was used again in the context of post 9/11 “war on terror”: the “extraordinary renditions” program is strikingly similar to what happened in Latin America in the past.

What issues is the United Nations Working Group on Enforced and Involuntary Disappearances focused on currently?

Olivier de Frouville: The WGEID did a fantastic job in its first years. If you read the first reports, all the main issues are well-identified. During its 30 years of existence, the WGEID explored those issues on the basis of the communications, allegations, and testimonies it received from families of victims, NGOs, and States. It drafted a number of studies but also, from 1993, “general comments” aiming at interpreting the 1992 Declaration for the Protection of All Persons Against Enforced Disappearances. These general comments can be found on the WGEID’s website.

What we are doing now is revisiting a number of issues in the light of new facts and situations, but also in the light of the evolution of international law. For instance, the idea that there is a right to the truth of the families of the disappeared was asserted in the very first report of the WGEID in 1981. But now it has become an emerging right in international law and it applies not only to enforced disappearances but also to other serious human rights violations. There has been major developments in this field, which led us to adopt a General comment on this issue. Now, there are many new challenges arising and touching upon a broad range of issues. We have recently adopted two new General comments, one on Women facing enforced disappearances (as disappeared persons, as family members, and as being often at the forefront of the fight against enforced disappearances), and another on children (as disappeared and appropriated children, but also as family members). We dedicated our last annual report to new trends in the field of reparation. And we are currently starting a study on the consequences of enforced disappearances on economic, social and cultural rights. Other issues we would like to look at in the coming years are the use of forensic analysis (particularly DNA tests in the search of the disappeared), the prevention of enforced disappearances (particularly the role of habeas corpus), and enforced disappearances during armed conflicts. Strangely, international criminal law recognizes enforced disappearance as a crime against humanity, but not as a crime of war. Of course, we also continue to try to improve our methods of work. Our main task is to provide assistance to the families of the disappeared: we aim at being as efficient as possible in fulfilling this task.

What issues is the Committee on Enforced Disappearances (CED) focused on currently?

Emmanuel Decaux: The CED began its work two years ago with a broad mandate. First it had to adopt the rules of procedure and a lot of legal niceties (guidelines on submission of reports, individual communications, and urgent actions), with translation in an user-friendly manner, in order to liaise with civil society and other stakeholders.

Since its fourth session, the CED started to carry out constructive dialogues with State parties in the context of the consideration of their reports. The first reports to be considered were those of Uruguay and France. Argentina and Spain will follow in November. The remaining reports will be considered by the CED as they are submitted by the other States parties. Germany, the Netherlands, and Belgium have already submitted their reports and they are scheduled to be considered in 2014. The common methodology of consideration of reports includes the preparation of a list of issues followed by an interactive dialogue with the State party concerned and the issuance of concluding observations, containing recommendations on how to meet the obligations stemming from the Convention. This process is carried out with great openness and transparency, including by the acceptance of alternative reports from civil society actors. The examination of reports by the CED is public and webcasted. There is a lot to do in order to timely consider the reports of the 40 States Parties, but it is essential to have this sort of “check-up” within two years after the ratification by any state.

Our second task is to be ready to answer to the communications or information from NGOs dealing with specific issues, such as urgent actions and allegations of serious violations which could lead to a country visit. We have already dealt with some cases related to Mexico, for example, as indicated in our report to the GA. However, it is important to highlight that before conducting a country visit, the Committee endeavors to engage with the State party concerned. We need a greater awareness and on-ground advocacy from the civil society to trigger the mechanisms of the Convention.

The CED is eager to cooperate with States to obtain a full respect of their legal duties and to apply a convention which is victim-oriented. But the first step is accountability, with compliance by States parties with their conventional responsibility of submitting a report on the measures taken to give effect to their obligations under the Convention. We hope that the first steps taken by the CED in a very professional and dedicated manner, will encourage all UN Members States to ratify the Convention as soon as possible as a preventive tool, a sort of “life assurance”.

What do you hope to see in terms of truth, justice, and reparation to victims of enforced disappearances in the coming years?

Olivier de Frouville: Enforced disappearances are not a fatality. This is a technique of terror, which is being taught to intelligence and security officers and allowed to be used by governments in “exceptional circumstances” in a number of situations across the world. We need to make those people understand that, as the Declaration says, no circumstances whatsoever may justify enforced disappearances. Enforced disappearance is torture. It is now widely accepted that there is an absolute jus cogens prohibition of enforced disappearances and a correlative absolute right not to be subjected to enforced disappearances.

The consequence is that enforced disappearance is a serious crime in international law, with all the consequences flowing from it in terms of international responsibility of the State, but also in terms of international responsibility of individual perpetrators. States and individuals must be held accountable. This is the reason why we continue to insist that investigations are undertaken and that perpetrators are punished, but also that the State should take measures to provide for reparations to victims, not only through compensation, but also through rehabilitation and satisfaction. Acknowledgement of the responsibility of the State, rehabilitation of the memory of the disappeared is particularly important.

Huge challenges also remain ahead as far as the right to the truth is concerned. Finding the truth about the fate of disappeared persons implies exhumation and identification of sometimes thousands of victims. This is a very complicated long-term and costly task, especially for developing countries. We need to think more of how to help countries in transition and who are willing to undertake this task but who do not have financial means and technical capacities. What was done by the international community in Bosnia-Herzegovina may serve as example. Even though we are still far from the end of the road in this country, great progresses have been made and a methodology has been defined that could be replicated in other countries.

Finally, we are very much concerned by the situation of those who fight against enforced disappearances on the field: families of victims, sometimes very simple people, human rights defenders, NGOs. Almost every week we receive calls for urgent actions because these peoples are subjected to threats, intimidation, or reprisals. They work in difficult conditions; they are often accused of defending “criminals”. It is hard for a mother who asks for the truth about her son, who has been abducted by the police or the military in front of many witnesses, to be answered: “Your son is a criminal, he fled and is now fighting with the guerrillas.” The fact is that the criminals are those who abducted her son. Another problem we see, especially due to the current times of financial crisis, is that those courageous peoples who are mobilizing themselves against enforced disappearances in their countries are lacking funds. It is more and more difficult to find financial support for what is often perceived by donors as a “politicized” issue, whereas other issues may seem less problematic. This is an absolute shame. There is a responsibility of all donors to strongly support those courageous people who are only asking for justice, truth, and reparation and who are taking all the risks on behalf of all of us.

Emmanuel Decaux is professor of public international law at the University Paris II as well as director of the Center for Human rights and humanitarian law (CRDH). He published extensively on Human Rights International Law. Since 2002, he was member of the Sub-Commision on Human Rights and, subsequently, member of the HRC Advisory Committee. He was elected member of the Committee on enforced disappearances in 2011 and is currently serving as chairperson. Olivier de Frouville is a Professor of Public Law at the University of Paris 2 (Panthéon-Assas), ad interim Director of the Thucydide Center and Deputy Director the Center of Research on Human Rights and Humanitarian Law (CRDH). He is also a member of the Institut Universitaire de France (IUF).

On Friday, the Supreme Court of the Netherlands ruled that the Dutch state, whose troops retreated from the U.N. safe-zone of Srebrenica during a Bosnian Serb attack, is responsible for the deaths of three Bosnian men whom the troops left behind. The three men were killed alongside thousands of Muslim men and boys at Srebrenica in the middle of July 1995. The three men had sought refuge in the compound of the Dutch battalion (Dutchbat). However, Dutchbat made the decision not to evacuate them and informed the men on 13th July 1995 that they had to leave the compound. Shortly after leaving the compound the men were killed by the Bosnian-Serb army or associated paramilitary groups.

The Hague District Court had attributed the actions of Dutchbat entirely to the U.N. on the grounds that it had at the time “operational command and control” over the peace-keeping operation. The District Court went on further to clarify this standard of attribution:

If Dutchbat was instructed by the Dutch authorities to ignore UN orders or to go against them, and Dutchbat behaved in accordance with this instruction from the Netherlands, this constituted a violation of the factual basis on which the attribution to the UN rests. This then creates scope for attribution to the State. The same is true if Dutchbat to a greater or lesser extent backed out of the structure of UN command, with the agreement of those in charge in the Netherlands, and considered or shown themselves as exclusively under the command of the competent authorities of the Netherlands for that part. If, however. Dutchbat received parallel instructions from both the Dutch and UN authorities, there are insufficient grounds to deviate from the usual rule of attribution.

The Supreme Court, upholding a Court of Appeals judgement in favour of the victims’ families, was asked to re-consider whether the actions of the battalion could be attributed to the Dutch state and if so whether the battalion had acted wrongly. The Supreme Court answered in the affirmative to both questions. In particular, the Court rejected the Dutch government’s submissions that holding Dutchbat responsible for the events that occurred at Srebrenica would potentially dissuade future peace-keeping missions and also make states less willing to supply troops for such missions. The Court was particularly critical of the Dutch battalion’s actions stating that:

Judicial restraint in the review of Dutchbat’s conduct as advocated by the State, would mean that there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission. According to the Supreme Court, this is unacceptable. However, a court that assesses the conduct of a troop contingent in retrospect must make allowance for the fact the decision in questions were taken under great pressure in a war situation.

The Supreme Court ruled that Article 7 of the Draft Articles on the Responsibility of International Organisations was applicable to the situation. The Supreme Court also affirmed at paragraph 3.10.2 of its judgment that this was a case where the State had made troops available for the purpose of a U.N. mission and despite the fact that the U.N. had command and control of the troops, disciplinary power and criminal jurisdiction remained with the State. The Court also affirmed that International Law, in particular Article 7 of the Draft Articles on the Responsibility of International Organisations in conjunction with Article 48(1) did not rule out the possibility of dual attribution of conduct to both a state and an international organisation. Accordingly, the Court noted at paragraph 3.11.2 that “the Court of Appeal was able to leave open whether the U.N. had effective control over Dutchbat’s conduct in the early evening of 13 July 1995.” Even if the U.N. had effective control over Dutchbat’s conduct it did not necessarily mean that it was solely responsible for this conduct. In sending the three men outside the compound the Supreme Court ruled that Dutchbat and had acted wrongly towards the three men under the Law of Obligations Act of Bosnia and Herzegovina and that the State was therefore responsible for this conduct.

Liesbeth Zegveld, who represented the victims’ families, has hailed the judgement as a legal breakthrough because it ascertains that “peacekeepers or the U.N. cannot operate in a legal vacuum, where there is no accountability or redress for victims” as had been the case until now. She further added that “[t]his says clearly that countries involved in U.N. missions can be held responsible for crimes … they are not always covered by the U.N. flag.” The ruling on Friday has brought a ten-year legal battle to an end. Two families will now receive damages from The Netherlands. Other cases could soon be brought before Dutch courts.

Military intervention in Syria, in the form of a bombing campaign conducted by Western powers, is a likely event in the coming weeks. With the UK no longer participating due a defeated motion in the House of Commons last week, action will most likely be undertaken by the US, for which President Obama will seek Congressional approval next week, and France. After two and a half years of international inaction in Syria, this new impetus for involvement in the conflict is a result of a chemical weapon attack that occurred in the countryside surrounding Damascus on 21 August, in which somewhere between 400 and 1400 people were killed. There is still a good deal of controversy over whether the attack was committed by forces loyal to the Assad regime or by a rebel group, although the US claims it has evidence that strongly points to the government as the culprits.

What is missing from the above paragraph from an international law perspective is UN Security Council authorisation. The UN Charter is very clear on the issue of the use of force in international relations: it may only be used in individual or collective self-defence (Article 51), or if authorised by the Security Council to “maintain or restore international peace and security”. States are not permitted to use military power to unilaterally enforce another state’s obligations under international norms or treaties (for a discussion of the possible need for such an addition to international law, see Pierre-Marie Dupuy (2012), “Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of ‘Obligations Owed to the International Community as a Whole’”, 23(4) European Journal of International Law 1059-1069).

The use of chemical weapons does not change the legal landscape in Syria, which leads to the question of why the attack has moved the Western powers to forcefully intervene in the conflict whereas more than 100,000 deaths previously did not. The most likely explanation is that the Obama administration is seeking to deter future uses of chemical weapons both specifically by the Assad regime and more generally by increasing the cost of using such weapons. While this is a noble gesture when taken in isolation, it is morally gruesome when viewed in the light of the many apparently acceptable deaths by ‘conventional’ weaponry in the war and normatively dangerous when seen in the context of its blatant disregard for international law. Such a policy also hints that any intervention will be very limited, with no real attempt to influence the material outcome of the conflict.

While the moral problems of the Western approach to the conflict are perhaps obvious, the impact of the legal problems may require further elaboration. After all, to quote the late jurist Antonio Cassese (speaking on NATO’s ‘illegal but legitimate’ intervention in Kosovo in 1999), ‘should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation?’ What is the value in upholding a law that prevents the international community from acting to allay suffering or punish a regime willing to commit atrocities upon its own people?

It is obvious that the Security Council is a highly flawed institution that often fails to act when it is needed most. However, it needs to be viewed as ultimately an arena of political compromise rather than a strictly legal entity. Its composition, in particular its five permanent members and their respective vetoes, stems from a recognition that the sphere of international relations is dominated by a small group of powerful states, between whom a balance of power is necessary to maintain. It must be remembered that the Council’s primary mandate is the maintenance of peace rather than the protection of human rights. In this rarefied air of power politics, international law acts as a language of negotiation, a delineation of what is permissible and desirable. It seeks to map the progression of international consensus with regards to the communal good.

The restrictions on the use of force are designed to ensure its use for the benefit of the international community rather than any individual state’s self-interest. What that ‘communal good’ is should not be conflated with a narrow Western conception of it. While we may abhor the protection of state sovereignty at the expense of human rights, many in the developing world see sovereignty as a crucial bulwark against the onslaught of Western imperialism. Syria is an immensely hard case in this regard, and it is hard to accept the deaths of thousands of people when the West could do ‘something’ about it. What constitutes that ‘something’ is problematic, however, and we are naïve if we believe that Western military intervention will automatically improve the situation.

The Russian and Chinese block on legal action under the Security Council may be representative of self-interest, but it also represents a deep scepticism about what military action can do to improve the situation in Syria. The civil war in Syria is an interlocking series of messy conflicts involving political, ethnic, religious and wider regional interests. It cannot be bombed into a solution. Unilateral military action in Syria not only represents a misguided attempt at ‘doing something’ to deal with the conflict, but disregards the notion that there are conceptions of the communal good beyond what Western leaders narrowly perceive it to be. As such, the victims are likely to be not only the people of Syria, but faith in international law as a means by which that good can be realised.

Postgraduate students on the LLM programme in International Human Rights and Public Policy at UCC recently completed a clinical project addressing issues of access to justice and reform of the criminal justice system in Pakistan. Key issues addressed included long periods of detention without trial, limited access to legal representation, the absence of effective civilian control or democratic oversight of counter terrorism policy, and the independence of the judiciary. The project was carried out in cooperation with leading human rights lawyers and advocates in Pakistan, and led by Professor Siobhán Mullally, as part of the Human Rights Law in Practice core module.

Reform of the criminal justice system in Pakistan is a key concern for human rights advocates, and is an issue that activists and lawyers have struggled to address for several decades. More recently, in the context of expansive counter-terrorism initiatives by the State and army, increasing militant activity in Pakistan’s tribal areas and civil unrest, reform has proven difficult to progress. Students explored the complex and plural legal systems in Pakistan, the ‘black hole’ that constitutes the tribal areas on Pakistan’s troubled Afghan borders, where the fundamental rights and constitutional protections do not apply.

The Pakistan project formed part of the innovative human rights law clinic, in which students develop lawyering and advocacy skills through collaborative project work that includes opportunities to make submissions to UN bodies, write legal briefs and submissions, engage with UN bodies, and examine the pros and cons of strategic litigation as an instrument to secure law and policy reform. Over the last year, in addition to the Pakistan project, students benefitted from guest presentations and discussions with speakers from Justice for Magdalenes, the Department of Justice and Law Reform Anti-Human Trafficking Unit, the International Bar Association Human Rights Institute, Office of the High Commissioner for Human Rights in Uganda, the Irish Penal Reform Trust, and the Human Rights Commission of Pakistan.

We are delighted to welcome Dr Eoin Daly, Lecturer at UCD School of Law contributing to our ‘Authors meet Readers’ series, celebrating the work of UCC PhD law graduates. As this is an ‘Authors meet Readers’ series, please feel free to contribute your comments as readers!

Eoin has had continuing success in his academic career, with several publications in leading international journals. He is a regular contributor to print and broadcast media engaging with contemporary issues of constitutional change in Ireland. Eoin graduated with a BCL (Law and French) degree from University College Cork, and was awarded a PhD by UCC in 2010, having secured a Government of Ireland Irish Research Council scholarship to support his doctoral research. He subsequently lectured at the School of Law and Government, Dublin City University between 2010 and 2012, and joined the School of Law at UCD in September 2012. His research interests lie primarily in the areas of constitutional law and political theory, with a focus on religious freedom, the separation of church and state, theories of justice, republican theory and John Rawls’ political liberalism. His areas of teaching include Law, Religion and Secularism, Constitutional law, French Civil Law, and Legal Theory.

Below Eoin discusses the recent publication of his book: Religion, Law and the Irish State (Clarus Press, 2012)

This book emerged indirectly from research I originally had carried out for my PhD thesis in UCC. I had long held an interest in issues surrounding religion and the State, particularly in the field of education. Since my undergraduate studies, I had been interested in the question of how denominational control of publicly-funded schools in Ireland could be squared with the ostensibly extensive rights of freedom of conscience, freedom of religion and religious equality which the Constitution recognises. I was also interested in how jurisdictions with contrasting traditions of constitutional secularism order the competing social claims on the value of religious freedom that arise in the context of public education. In my PhD thesis, which I completed in 2010 (supervised by Conor O’Mahony). I addressed this issue from the perspective of John Rawls’ theory of justice. Thus, through my PhD studies I developed an interest in political philosophy as well as constitutional law. I studied the constitutional treatment of this subject not only in Ireland, but also in the United States, where there is a strong constitutional tradition of Church-State separation, and France, which is also associated with a relatively strict conception of secularism and state neutrality. My thesis argued that formal state neutrality towards religions in the funding and recognition of schools can sustain significant inequalities in the protection of religious freedoms in this context. Increasingly, the system of support for denominational schools is justified using the terminology of “choice”, but “choice” itself – while morally and philosophically incoherent – is distributed unevenly based on power relations rooted in demographics, class and recognition.

Religion, Law and the Irish State, which I wrote while lecturing at DCU,essentially stemmed from this interest. Rather than focusing on education specifically, it offers a more general treatment of the status and protection of religion in Irish law. While there is relatively little case law on this subject in Ireland, I aimed to set the legal doctrine in the context of the history and politics of the Church-State relationship in Ireland. The book explores how the constitutional framework for State and religion – which is more flexible and indeterminate than is often assumed – has evolved in tandem with the transformations that have occurred in the Church-State relationship since the enactment of the current Constitution.

In Chapter 1, the book examines how, compared to earlier decades, the Supreme Court has increasingly eschewed any use of religious values as a guide to interpreting and delimiting constitutional rights, gradually embracing a more secularised understanding of the constitutional philosophy. Chapter 2 argues that the Irish courts have yet to adopt a coherent doctrine concerning freedom of religion in light of recent controversies surrounding the accommodation of religious expression in education and employment. In Chapter 3, I argue against the prevailing tendency to view religious equality and non-discrimination as being subordinate to a narrow conception of religious freedom. Chapters 4 and 5 examine inequalities in the protection of religious freedom in the schools context, in light of the historical “patronage” model which sees the public education function devolved to denominational bodies. Chapter 6 considers the separation of Church and State in light of the constitutional guarantee against the state endowment of religion. Finally, Chapter 7 looks at legislative intervention in religious function, and Chapter 8 at the offence of blasphemy in Irish law.

The book aims to show that while there is a commonplace understanding of the Irish constitution as being strongly influenced by religious and Catholic values in particular, it is in fact ambiguously poised between contradictory theories and understandings of the State-religion relationship. It tentatively accords religion public status and recognition at mostly symbolic levels, but commits it to the “private sphere” for most practical purposes. More fundamentally, I aimed to show that the abstract status and recognition which the legal system accords to religion has obscured important inequalities in the protection of rights relating to religious and non-religious beliefs and practices.